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How is Victim Restitution Determined in Colorado?

During sentencing, the defendant may be ordered to pay money to the victim for damages caused by the crime. If defendants fail to pay the victim restitution, they may face collections, late fees, garnished wages, or even lose their driver's licenses. In this article, our Colorado criminal defense lawyers will address:

In Colorado, victim restitution is money owed to the alleged victim of a crime.

1. What is victim restitution in Colorado?

Victim restitution is money owed to the alleged victim of a crime. As part of the penalty, the defendant is required to pay money to the alleged victim to reimburse them for any damages caused by the crime. These financial payments are ordered by the court and the defendant will be penalized if he or she doesn't pay it.

Under Colorado Revised Statutes 18-13-603, every conviction shall include consideration of restitution.1

Restitution includes any financial loss suffered by a victim.2 Restitution can be required for any number of reasons. This includes payment for physical damages, medical costs, or economic losses, including:

Medical expenses

Dental expenses

Lost wages

Loss of support

Therapy and counseling

Insurance deductibles

Property damage

Replacement costs

Funeral or burial expenses

Example: Charlie and his friends are drinking at a local bar watching a Broncos game. Charlie has too much to drink and decides to drive home. Charlie gets into a car accident with another driver. The other vehicle sustains major damage and the other driver suffers a broken arm. Charlie panics and leaves the scene of the accident.

The police catch up to Charlie and pull him over. The police find Charlie is impaired. Charlie is arrested, charged, and convicted for DUI causing injury and hit and run in a Colorado court. As part of Charlie's sentencing, the judge requires Charlie to pay for the other driver's medical bill and vehicle damage as part of restitution.

However, victim restitution is not unlimited. Restitution does not include damages for:

Physical or mental pain and suffering

Loss of consortium

Loss of enjoyment of life

Loss of future earnings

Punitive damages 3

Example: Frank is arrested for his 3rd DUI in Colorado within the course of a year. The most recent DUI resulted in a fender bender where no one was injured. The judge is angry that Frank keeps getting arrested for drunk driving and wants to teach him a lesson with a harsh sentence.

The judge sentences Frank to the maximum penalty for a 3rd DUI of 1 year in jail and a $1,500 fine. However, to make an example of Frank, the judge also ordered Frank to pay for the vehicle damage and an additional $10,000 as punitive damages.

While the judge can require Frank repay the owner of the vehicle for the damage, restitution cannot include punitive damages. In this case, the payments would be limited to the value of the car repairs.

Victim restitution is separate from other fines and fees the defendant has to pay. Depending on the crime, the defendant may have to pay fines to the state, as well as fees to the courts or other compensation funds. However, victim restitution is a payment that is made to compensate the alleged victim directly.

2. When do you have to pay victim restitution?

Some statutes specifically provide for victim restitution, although it can be considered as part of criminal sentencing for any crime. The judge can order payments made to the victim or victims of the crime for losses suffered as a result of the crime.

However, victim restitution is often part of a plea agreement. In a plea deal, the defendant accepts a certain sentence in exchange for pleading guilty. The plea deal can include an agreement to pay for the damages caused by the crime, including payments to the victim.

As part of sentencing or a plea agreement, the victim restitution order may contain the following:

An order with a specific amount of money to be paid by the defendant;

An order that the defendant is obligated to pay for damages, with the specific amount to be determined;

An order that the defendant make payments covering the actual costs of specific future treatment of any victim of the crime; or

A specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of compensation is being entered.”)4

Example: As part of her court-ordered community service, Deandra volunteers at a senior center where she reads to residents with poor eyesight. Deandra thinks she should be getting paid for her volunteer work, so she takes items from the residents when they are not looking.

One day, Deandra spots a piece of costume jewelry that she likes and steals it from the senior resident. She later sells it for $20 to a pawnbroker. It turns out the jewelry was really worth $6,000. Deandra is arrested by police for grand larceny (theft of anything worth more than $5,000), which is a felony. Deandra could also face additional penalties for theft against an “at-risk” elder aged 70 or older.

As part of her sentencing, the judge requires Deandra to repay the victim $6,000. Deandra claims she thought it was a cheap piece of jewelry. However, even if Deandra was mistaken as to the value, she still caused the senior citizen a pecuniary loss of $6,000 and has an obligation to repay the actual value of the jewelry.

3. How is victim compensation calculated in Colorado?

Victim restitution may include past damages, projected future losses, and reimbursement for payments made by other parties. Most of these awards are used to compensate the injured party for injuries they've suffered. This generally includes medical treatment and counseling. It can also include continuing physical or mental health treatment for the future.

Victim restitution is calculated based on the financial and physical impact of the crime. The prosecutor may use a “victim impact statement” and other information to identify the victims and the damages suffered by the individual. The prosecutor generally provides this information to the court within 91 days of the order of conviction; however, the court can extend this amount of time.5

Victim Impact Statement

According to the Colorado Judicial Department, “the Victim Impact Statement gives victims the opportunity to share with the court how this offense has impacted them and what they would like to see happen regarding sentencing.”6

The victim impact statement allows the victim to detail the physical and financial effects of the crime, including:

Injuries

Monetary losses

Damaged property

Impact on business

Medical costs

Dental costs

Therapy costs

Prescription fees

The victim impact statement also requests copies of receipts, financial records, and other documentation in order to get compensation. During a hearing, the victims may have to show the judge that the losses reported are justified and that reasonable steps were taken to minimize replacement compensation of the losses.

The injured individual is also to report if the insurance company paid any of the bills. Generally, the court will now allow for damages owed for the portions covered by insurance or indemnity agreements. However, compensation may include any deductible paid by the insured.7

The court will consider victim restitution even if no one submits an impact statement or does not request compensation.

4. How is restitution paid to the victim in Colorado criminal cases?

These payments are not made directly to the victims from the defendant. Instead, the defendant makes a payment to the state and the state submits a payment to the victims.

Most payments for losses as the result of a crime are collected by the courts. The courts collect this money for defendants who are not sentenced to time in jail, on probation, or defendants who have been released and are no longer on parole.8

The Colorado Department of Corrections collects victim restitution from all offenders under its supervision or sentenced to time in jail or another correctional facility. This includes defendants who are imprisoned or on parole. The department collects payments by garnishing the defendants' pay or bank deposits.9

The Department of Corrections automatically garnishes 20% of all income received by the offender. However, if a defendant does not have payments or deposits made while they are incarcerated, the Department of Corrections may not end up collecting any of the compensation for the injured party.

Who Collects Victim Restitution?

Defendant's Status or Sentence

Victim Restitution Collection

Probation (supervised or unsupervised)

The judicial branch sets up a payment plan with the defendant and monitors payments.

Incarcerated in a Correctional Facility

The Department of Corrections automatically garnishes 20% of all income received by the offender.

On Parole

The Department of Corrections requires the defendant pay 20% of all deposits.

Payments are made to the sufferer after the money has been collected. Payments are normally made within 15 days of the date the payment is received by the court. Payment times could take longer if payments have to go through collections or a tax refund intercept.

In some cases, victims may not receive their money if the court cannot locate them. For example, if a victim moves or changes their mailing address without providing a forwarding address, the payment may go unclaimed. When payments are uncashed for 2 years, the funds are turned over to the judicial district funds.

5. Is there interest on department of corrections restitution in Colorado?

Any of these damage payments are subject to interest at the rate of 8% per year. Interest is assessed from the date of the restitution order. Any money judgment remains in effect until the restitution is paid in full.10

The defendant may also owe for reasonable and necessary legal fees associated with collecting the money owed because of nonpayment.11

For example, if a defendant owes the victim $1,000 for medical bills associated with the crime, and the defendant is unable to make payments, interest will accrue at 8% per year. After 5 years, the defendant will owe the victim approximately $1,469. If the payments go to collections, the defendant may also owe for legal collections fees.

6. Can you go to jail for not paying restitution?

The penalties for not paying the money owed may depend on the specific facts of the case. Reimbursement for damages is often made as a condition of probation. If the defendant does not make court-ordered payments, the defendant may be in violation of their probation conditions and could have to go to jail.12

7. Is there a statute of limitations for victim restitution in Colorado?

There is no statute of limitations on the victim restitution order amount. Any repayment judgment remains in effect until the damages are paid in full.13

However, if the statute of limitations has expired for a crime, the defendant cannot be charged with that crime or be ordered to pay repayment for a crime that is beyond the statute of limitations.

Example: Dennis used to be addicted to drugs and would steal or burglarize homes to get money to buy drugs. Dennis broke into a home he thought was empty at the time to steal any valuables he could find. Instead, he was confronted by the resident, who he struck with a crowbar. The homeowner suffered permanent neck injuries as a result of the attack.

During sentencing, the judge required Dennis to pay the medical bills and costs of the victim's injuries, totaling $1 million. However, Dennis never had any money to make payments and never paid anything to the homeowner, even after he was released from jail.

Twenty years later, Dennis got clean, got a job, has a family, and makes good money. Dennis gets a notice in the mail that he still owes $1 million plus interest. Even though it has been more than 20 years after the burglary and assault, Dennis still owes the amount of the damages as part of the judgment.

8. What happens if you can't pay victim restitution?

Many defendants do not make restitution payments because they think they do not have enough money. However, compensation is not based on the defendant's income. Even if the defendant has no income and no savings, they are still liable for the damages caused to the victim.

If the defendant does not make payments, the court will have a collections investigator establish a payment plan. The investigator will monitor the payment schedule and collect any redress owed. If the defendant fails to make payments, he or she may be assessed a failure to pay fees and late charges. Failing to make these payments will also carry interest at a rate of 8% every year.

Failure to make payments may also result in a suspension of the defendant's driver's license in traffic-related cases.

The court can also take the defendant to collections for missed payments. In order to collect the money owed, actions may include:

Placing a lien on the defendant's property

Placing a lien on the defendant's vehicle

Garnishing wages

Attachment of assets

Intercept tax refunds

Intercept lottery winnings

Bankruptcy proceedings do not discharge victim compensation judgments. If the defendant declares bankruptcy, they are still obligated to pay the court-ordered money.

The victim also has a civil cause of action against the defendant for any losses associated with the crime. Regardless of the outcome of the criminal case, an alleged victim of a crime can file a civil lawsuit against the accused for any damages suffered. This is separate from the criminal case and is handled in civil court.

Example: Robert got into a fight with another man at a bar. Robert threw a glass at the other individual but missed the other man and hit the man's girlfriend in the fact. The woman needed stitches and was left with scars.

Robert was sentenced to probation for second degree assault, and ordered to pay $50,000 restitution for the victim's medical bills. Robert didn't want to pay the money because Robert blamed the woman's boyfriend for starting the fight. Robert also didn't pay because the injured woman was a millionaire's daughter and she did not need the money.

A few months later, Robert gets a lien on his car, his paycheck is garnished, and he never receives his tax refund. Even if the victim does not need the money, the defendant is still required to make payments as part of their sentencing until the entire amount has been paid.

After Robert finally makes the last payments required by the judge, he is served with notice that he is being sued in civil court. The injured woman is suing Robert for her injuries, including seeking damages for loss of enjoyment of life and pain and suffering. Even though Robert compensated the victim according to his criminal sentence, he may still face civil penalties, which provide for additional damages.

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If you are charged with a crime in Colorado, you may be ordered to pay victim restitution.

Legal References

C.R.S. 18-1-603 (“(1) Every order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney's office, shall include consideration of restitution.”)

C.R.S. 18-1-602 (“(3)(a) "Restitution" means any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, money advanced by a governmental agency for a service animal, adjustment expenses, and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money. "Restitution" does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages.”)

Same.

C.R.S. 18-1-603(1) (“Each such order shall include one or more of the following: (a) An order of a specific amount of restitution be paid by the defendant; (b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined; (c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or (d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered.”)

C.R.S. 18-1-603(2) (“The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney's ability to determine restitution.

C.R.S. 18-1-603(8) (“(a) Notwithstanding the provisions of subsection (1) of this section, for a non-felony conviction under title 42, C.R.S., the court shall order restitution concerning only the portion of the victim's pecuniary loss for which the victim cannot be compensated under a policy of insurance, self- insurance, an indemnity agreement, or a risk management fund. (b) The court, in determining the restitution amount, shall consider whether the defendant or the vehicle driven by the defendant at the time of the offense was covered by: (I) A complying policy of insurance or certificate of self-insurance as required by the laws of this state; (II) Self-insurance including but not limited to insurance coverage pursuant to the provisions of part 15 of article 30 of title 24, C.R.S.; or (III) Any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim. (c)(I) Except as otherwise provided in this paragraph (c), a court may not award restitution to a victim concerning a pecuniary loss for which the victim has received or is entitled to receive benefits or reimbursement under a policy of insurance or other indemnity agreement. (II)(A) A court may award a victim restitution for a deductible amount under his or her policy of insurance. (II) Nothing in this paragraph (d) shall prohibit a nonowner driver or passenger in the vehicle from being awarded restitution if the driver or passenger was not covered by his or her own medical payments coverage policy. (e)(I) Notwithstanding any provision of law to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to defend a defendant in a hearing concerning restitution. No court shall interpret an indemnity or insurance contract so as to obligate an insurance company, risk management fund, or public entity to defend a defendant at a restitution hearing absent a specific agreement. (II) Notwithstanding any provision of law, indemnity contract, or insurance contract to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to pay or otherwise satisfy a civil judgment entered pursuant to this part 6, or to indemnify a defendant for an amount awarded in a restitution order. (f) Nothing in this article shall be construed to limit or abrogate the rights and immunities set forth in the “Colorado Governmental Immunity Act”, article 10 of title 24, C.R.S. (g) The provisions of this subsection (8) shall not preclude the court, pursuant to article 4.1 of title 24, C.R.S., from ordering restitution to reimburse an expenditure made by a victim compensation fund.

C.R.S. 16-18.5-105 (“(1) The collections investigator shall be responsible for monitoring the payments of restitution by any defendant referred to the investigator pursuant to section 16-18.5-104. Based upon changes in the defendant's financial circumstances, the collections investigator may modify the payment schedule established pursuant to section 16-18.5-104 (4). If a payment schedule has been made an order of the court pursuant to section 16-18.5-104 (4) (a) (II), prior to enforcing a new schedule, the collections investigator shall request and obtain a modification of the order.”)

C.R.S. 16-18.5-106 (“(1) Whenever a person is sentenced to the department of corrections, the department of corrections is authorized to conduct an investigation into the financial circumstances of the defendant, as described in section 16-18.5-104 (3), for purposes of determining the defendant's ability to pay court-ordered costs, surcharges, restitution, time payment fees, late fees, and other fines, fees, or surcharges pursuant to section 16-18.5-110.”)

C.R.S. 18-1-603(4) (“(a)(I) Any order for restitution entered pursuant to this section is a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment remains in force until the restitution is paid in full. The provisions of article 18.5 of title 16, C.R.S., apply notwithstanding the termination of a deferred judgment and sentence or a deferred adjudication, the entry of an order of expungement pursuant to section 19-1-306, C.R.S ., or an order to seal entered pursuant to part 7 of article 72 of title 24, C.R.S. (II) Notwithstanding the provisions of subparagraph (I) of this paragraph (a), two years after the presentation of the defendant's original death certificate to the clerk of the court or the court collections investigator, the court may terminate the remaining balance of the judgment and order for restitution if, following notice by the clerk of the court or the court collections investigator to the district attorney, the district attorney does not object and there is no evidence of a continuing source of income of the defendant to pay restitution. The termination of a judgment and order pursuant to this subparagraph (II) does not terminate an associated judgment against a defendant who is jointly and severally liable with the deceased defendant.”)

C.R.S. 18-1-603(4) (“(b) Any order for restitution made pursuant to this section is also an order that: (I) The defendant owes simple interest from the date of the entry of the order at the rate of eight percent per annum; and (II) The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant's nonpayment.”)

C.R.S. 18-1.3-205 (“As a condition of every sentence to probation, the court shall order that the defendant make full restitution pursuant to the provisions of part 6 of this article and article 18.5 of title 16, C.R.S. Such order shall require the defendant to make restitution within a period of time specified by the court. Such restitution shall be ordered by the court as a condition of probation.”)

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